No. 85-490 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

STREICH & ASSOCIATES, INC., a corporation, Plaintiff and Respondent,

ST. PAUL MERCURY INSURANCECOMPANY, a corporation, and ROBERT C. MASTERS, Defendants and Appellants.

APPEAL FROM: DistrictCourt of the Eleventh JudicialDistrict, In and for the County of Flathead, The HonorableNat Allen, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Alexander & Baucus; Neil Ugrin, Great Falls,Montana
For Respondent: TerryN. Trieweiler, Whitefish,Montana

Submitted on Briefs: Jan. 16, 1986 Decided: April 29, 1986

Filed: 

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ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.This is an appeal from the Flathead County District Court's denial of a motion for change of venue. We affirm. We note at the outset that although the new venue provisions in the Montana Code were not in effect when the District Court handled this matter, they apply to this appeal. See Weiss v. State (Mont. 1986), 712 P.2d 1315, 43 St.Rep. 82. The current § 25-2-122, MCA, provides that proper venue for a tort action iswhere defendant resides,or where the tortwas committed. In this case, we are asked to determine where an alleged insurer bad faith tort was committed. If the alleged tort was not committed in Flathead County, then plaintiff filed the action in an improper county under § 25-2-122,MCA, and defendants are entitled to removal. See Bradley v. Valmont Industries, Inc. (Mont. 1985), 701 P.2d 997, 42 St.Rep. 925. Plaintiff filed its complaint in the District Court for Flathead County, Montana, claiming the defendants violated Montana's Unfair Trade Practices Act, § 33-18-201,M.CA. The complaint alleges thatplaintiff's potato cropwas damaged by potting soil purchased from Martin's Peat, Inc. Both the plaintiff's farm and Martin's Peat, Inc., are in Flathead County. Martin's Peat is insuredby defendant,St. PaulMercury Insurance Company. The insurance company has its principal place of business in St. Paul, Minnesota. Defendant, Masters, is a claims representative for the insurance company. Masters resides and maintains his office in Great Falls, Cascade County, Montana. An affidavit of Masters was filedat the District Court stating that all work and decisions on plaintiff's claim were accomplished in Great Falls. The affidavit also attests that Masters is quadriplegic and that he performs nearly all of his work for the insurance company in Great Falls. Defendants filed a motion requesting that venue be changed to Cascade County. The District Court denied that motion and a subsequent motion by defendants to vacate, amend, alter or revise the denial. Defendantsnow appeal the DistrictCourt's refusal to changevenue. We note that the insurance company and its claims representative are separate defendants. Section 25-2-117, MCA is therefore applicable. That statute provides that "a county that is a proper place of trial for any defendant is proper for all defendants." In this case,venue in Flathead Countywasproper for the insurance company. The basis of plaintiff's complaint is that defendants violated Montana's Unfair Trade Practices Act by:

(1) failing to act reasonably promptly with respect to plaintiff's claim of damage to his potato crop; (2) failing to adopt and implement reasonable standards for the prompt investigation of plaintiff's claim; and (3) failing to attempt in good faith to effectuateprompt, fair and equitable settlementofplaintiff's claim even though liabilitywas reasonably clear. See S 33-18-201, MCA. Defendants allege that these ommissions were committed, if at all, in Cascade Countywhere the claimwas reviewed and decisions onhandling the claim weremade. We disagree. Plaintiff's action is founded on S 33-18-201,MCA. The insurer's duties under that statute include investigationand negotiation. These duties could only have realistically beenperformed inFlathead County. Therefore, thedutycould only be breached inFlathead County. "For the purposes of venue, a tort is committed where there is a concurrence of breach of obligation and the occasion of damages." Whalen v. Snel.1 (Mont. 1983), 667 P.2d 436, 40 St.P.ep. 1283, 1285. Here, thebreach, ifany, of the insurer's obligation and the damages occurred in Flathead County. Venue was, therefore, proper in Flathead County. Weaffirm. ./

Weconcur: 

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